Sheeja P.K. v. Dewan Housing Finance Corporation Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 14TH DAY OF JANUARY 2020 / 24TH POUSHA, 1941** ## **WP(C).No.32551 OF 2019(T)** ## **PETITIONER:** **MRS.SHEEJA P.K., 8/626/1, VRINDAVANAM, ELAMKULAM, SREKARYAM P.O., TRIVANDRUM-6017.** **BY ADVS. SRI.SANTHAN V.NAIR SMT.CHRISTEENA P GEORGE** ## **RESPONDENT:** **DEWAN HOUSING FINANCE CORPORATION LTD(DHFL), WARDEN HOUSE, SIR.P.M.ROAD, FORT, MUMBAI, REPRESENTED BY ITS AUTHORISED OFFICER, RAKESH DAWNY, KOKKATTER DHFL, KNM BUILDING, PALARIVATTOM, KOCHI-682 025.** ## **BY ADV. SRI.P.PAULOCHAN ANTONY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ALEXANDER THOMAS, J. --------------------------------W.P.(C) No. 32551 of 2019 --------------------------------Dated this the 14[th] day of January, 2020 ## J U D G M E N T The case projected in this Writ Petition (Civil) is as follows: The petitioner is repaying the housing loan taken by her husband. There are no default of loan amount except for the installments for the last three months. When the petitioner went to pay the installments, the respondent did not accept the amount and after that they caused the Advocate Commissioner to issue Ext.P3 notice to take possession of the petitioner's house on 28.11.2019. Notice was sent on 25.11.2019 and it was received by the petitioner on 26.11.2019. According to the petitioner, Ext.P3 notice is premature for the reason that the petitioner has not paid only 3 months installments. The petitioner is ready to deposit the amount overdue provided, the respondent is given a direction to accept the same. It is pointed out that the petitioner and her husband are not in good terms and there was a settlement award as can been seen from Ext.P-1. Since the husband had not W.P.(C) No. 32551 of 2019 ..3.. complied with the settlement award, Execution Petition is pending before the Principal Sub Court, Trivandrum for an amount of Rs.40,00,000/-. The respondent herein is also a respondent therein. Without appearing in the above E.P., the respondent is trying to take physical possession of the property. It is submitted that the petitioner prays for a direction against the respondent to accept the payments to be made by the petitioner herein and to realise the total loan amount from the Claim amount in the above E.P. It is in the light of these averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: " _1. Writ of Mandamus or any other appropriate Writ, direction or Order directing the respondent herein to permit the petitioner to regularise the loan account._ _2. Writ of mandamus or any other appropriate Writ, Direction or Order directing the respondent to realise the total loan amount from the amount due under EP pending before the Principal Sub Court, Trivandrum in EP No.112/2018._ _3. Such other relief or reliefs that this Hon'ble Court may deem fit and proper in the nature and circumstances of the case."_ 2. Heard Sri.Santhan V.Nair, learned counsel appearing for the petitioner and Sri.P.Paulochan Antony, learned counsel W.P.(C) No. 32551 of 2019 ..4.. appearing for the respondent Dewan Housing Finance Corporation Ltd (DHFL) . 3. After hearing both sides and after perusal of the pleadings and materials on record, it is seen that the petitioner herein had previously approached this Court by filing WP(C) No.35394/2018 challenging the very same proceedings initiated by the respondent financial institution by invoking the SARFAESI Act, in respect of the very same loan transaction entered into between the petitioner and her husband as coborrowers with the respondent financial institution. Therein also the petitioner has sought directions from this Court to ensure the regularisation of the loan account by permitting her to pay and clear the overdues in instalments. This Court after hearing both sides had rendered Ext.P-2 judgment dated 5.11.2018 in WP(C) No.35394/2018 and specifically found therein that in writ proceedings of this nature, there are jurisdictional limitations imposed on this Court, in view of the settled rulings of the Apex Court and various High Courts including this Court as in _**Union**_ W.P.(C) No. 32551 of 2019 ..5.. _**Bank of India v. Satyawati Tondon [(2010) 8 SCC 110]** ,_ _**Authorised Officer, SBT v. Mathew [ILR 2018 (1) Ker, 479]**_ , and that therefore this Court is not in a position to consider any of the contentions raised by the petitioner on merits. However, in view of the contentions made by the respondent financial institution that the petitioner could be allowed to pay off the then overdue amount Rs.3,17,270/- in not more than 6 instalments commencing from 1.12.2018, so that the account could be regularized. It is in the light of these aspects that this Court has passed the following directions in paragraph No.8 and the final paragraph of Ext.P-2 judgment which reads as follows: _"8. In such circumstances, I direct the petitioner to pay off the overdue amount of Rs.3,17,270/- in six equal monthly instalments commencing from 1st December 2018 along with applicable charges and interest. He shall also in addition to this, pay the regular EMIs without fail. If such payment is made by the petitioner, his loan account would stand regularised and he would then be at liberty to service the account as per the terms of the loan sanctioned. It goes without saying that if there is any default in making the payment as directed above, the benefit granted under this judgment would stand vacated and the Bank will be at liberty to recover the entire liability from the petitioner by continuing with the proceedings from the stage it is on this date._ _I make it clear that the directions in this judgment are peremptory in nature and that the petitioner will have to comply with the same meticulously. I caution the petitioner that no further requests for extension or modification of this judgment will be permitted and that if the petitioner fails to comply_ W.P.(C) No. 32551 of 2019 **==> picture [19 x 9] intentionally omitted <==** _with the directions herein, he will lose the benefit of this judgment and he will also be foreclosed from challenging the proceedings involved in this writ petition before any other alternative forum or court "_ 4. It is not in dispute that the petitioner has not complied with the terms and conditions in Ext.P-2 judgment. However, on the other hand the petitioner ventured to file yet another Writ Petition (Civil) before this Court as WP(C).No.3897/2019 and this Court held in the judgment dated 8.2.2019 in WP(C).No.3897/2019 that the said writ petition is filed virtually seeking modification of the directions in the judgment dated 5.11.2018 in WP(C) No.35394/2018 filed by the petitioner on the very same issue on previous occassion (Ext.P-2), and that such a course of action is not permissible in law, and hence this Court had dismissed the said petition as not maintainable. However, liberty was accorded to the petitioner to approach this Court seeking modification of the conditions imposed in the judgment of this Court as per Ext.P-2 herein (Ext.P-3 therein). Thereafter the petitioner has chosen to file I.A.No. 1/2019 in the disposed WP(C) No.35394/2018 seeking further extension of time for paying the W.P.(C) No. 32551 of 2019 **==> picture [19 x 9] intentionally omitted <==** instalments so as to regularize the loan account. The said I.A. No. 1/2019 in WP(C) No.35394/2018 was strongly opposed by the respondent financial institution. However, even at that point of time the respondent financial institution was gracious enough to apprise this Court that if the petitioner pays all the defaulted instalments together with applicable interest along with the next instalment, then the bank can agree to give any further time to the petitioner. Thereupon the petitioner has undertaken before this Court that the petitioner would clear the first three instalments ordered as per Ext.P-2 herein along with the 4[th] instalment on 1.3.2019 without fail. Taking note of the said submissions made on either side and mainly based on the contentions made by the respondent financial institution, this Court had then passed order dated 19.2.2019 in I.A.No.1/2019 in disposed WP(C) No.35394/2018, whereby the petitioner was granted further time to pay the instalments that feel due on 1.12.2018, 1.1.2019 & 1.2.2019 along with the instalment due on 1.3.2019, and further made clear that if these directions are violated by the petitioner, W.P.(C) No. 32551 of 2019 ..8.. then the bank will be at liberty to act as per the judgment as per Ext.P-2 herein without any further orders. The said order dated 19.2.2019 rendered by this Court on I.A.No.1/2019 in WP(C).No.35394/2018, reads as follows: _"This application for extension of time was stiffly opposed by the learned counsel for the bank. He, however, submitted that only if the petitioner pays all the defaulted instalments, together with applicable interest, along with the next instalment which falls due on 01.03.2018, can the bank agree to give any lenitude to the petitioner._ _The learned counsel for the petitioner submits that her client will pay the first three instalments, ordered in the writ petition, only with the fourth instalment on 01.03.2019, without fail._ _In the afore circumstanes, I allow this I.A. and permit the petitioner to pay the instalments that fell in due on 01.12.2018, 01.01.2019 and 01.02.2019 along with the instalment due on 01.03.2019._ _I make it clear that if these directions are also violated, then the bank will be at liberty to act as per the judgment without any further orders."_ 5. It appears that even then the petitioner has not complied with the terms and conditions agreed upon by her as per the Ext.P-2 herein as modified by the abovesaid order dated 19.2.2019 in I.A.No.1/2019. Now the petitioner has again ventured to approach this Court by filing the instant Writ Petition on 29.11.2019 raising almost similar or identical prayers therein and it is now clear that the petitioner has not been able to fulfil the terms W.P.(C) No. 32551 of 2019 **==> picture [19 x 9] intentionally omitted <==** and conditions in the judgment as per Ext.P-2 herein as modified by the order dated 19.2.2019 on I.A.No.1/2019 in the said WP(C). 6. Sri.P.Paulochan Antony, learned counsel appearing for the respondent financial institution would strongly urge that the present writ proceedings initiated by the petitioner which is thoroughly not maintainable and is an abuse of the process of court. 7. However, Sri.Santhan V.Nair, learned counsel appearing for the petitioner still persisted to make arguments that there was dispute between the petitioner and her husband in pursuance of the loan transaction entered into by the petitioner and her husband as co-borrowers with the respondent financial institution. Further it is pointed out that, the petitioner was then constrained to set in motion a civil proceedings by filing original petition as O.P.No.871/2013 before the Family Court, Trivandrum, in which her husband was arrayed as the 1[st] respondent therein and that the respondent financial institution was also arrayed as the 2[nd] respondent therein, and that the matter was then referred by W.P.(C) No. 32551 of 2019 ..10.. the Family Court to the Lok Adalath as per the provisions contained in the Legal Services Act, 1987, and that the parties had arrived at a settlement which resulted in Ext.P-1 award dated 22.9.2015 in this case. Further that, since the husband did not honor the terms and conditions of Ext.P-3 in Ext.P-2 Lok Adalath award, the petitioner was constrained to set in motion execution proceedings as E.P.No.112/2018 before the Principal Sub Court, Thiruvananthapuram. It is in the light of these aspects that Sri.Santhan V.Nair, learned counsel appearing for the petitioner would raise certain submissions that this Court may direct the respondent financial institution to realise the loan amount from the amounts due from the execution petition pending before the Principal Sub Court, Thiruvananthapuram, as E.P.No.112/2018. 8. After hearing both sides it is seen that the learned counsel appearing for the respondent financial institution is right in pointing out that the abovesaid factual contention now advanced by the petitioner was certainly available to the petitioner when he had moved Ext.P-2 WP(C).No.35394/2018, and that the said W.P.(C) No. 32551 of 2019 ..11.. aspect has never been agitated by the petitioner, and therefore the petitioner is barred by the principles of _Res Judicata and Constructive Res Judicata_ from raising such a contention at this late stage after having got verdicts based on her own consent as per Ext.P-2 and the subsequent modified order. Irrespective as to whether the petitioner could otherwise raise such a contention in this writ proceedings, primarily relates to SARFAESI proceedings, this Court has no hesitation to hold that the learned counsel appearing for the respondent financial institution is right in raising that submission, that the petitioner cannot be permitted to raise such a contention now based on the said E.P.No.112/2018 pending before the file of the Principal Sub Court, Thiruvananthapuram, going by the well settled legal principles discernible from the doctrine of _Res Judicata and Constructive Res Judicata._ It is now well settled that the principles flowing out from the doctrine of _Res Judicata and Constructive Res Judicata_ are also equally applicable and importable in writ proceedings under Article 226 of the Constitution of India. Therefore the petitioner cannot be W.P.(C) No. 32551 of 2019 ..12.. permitted to raise the present contentions, more so particularly after having got Ext.P-2 judgment and the modified order thereafter, which the petitioner has violated. Therefore the petition is only to be dismissed as not maintainable. 9. However taking into account the fact that the petitioner is a lady, this Court had requested the learned counsel appearing for the respondent financial institution to get instructions from his party, as to whether the petitioner could be given some breathing time to clear the overdues for regularising the loan account, subject to stringent conditions. 10. Sri.Santhan V.Nair, learned counsel appearing for the petitioner has submitted on the basis of instructions of his party that the petitioner would undertake that she would clear the over dues for regularizing the loan account within 5 months. 11. It appears that, the over dues owed by the petitioner for regularizing the loan account as on 9.12.2019 and after giving credit for a payment made by then, now comes to Rs.4,32,446/-. The counsel for the respondent financial institution would submit W.P.(C) No. 32551 of 2019 **==> picture [23 x 9] intentionally omitted <==** on the basis of instructions of his party that, it is for the petitioner to represent and undertake before the respondent financial institution, that she would clear the balance over dues in 5 equal monthly instalments without any further delay, and to prove her bonafides, she should immediately deposit some amount, and if such a plea is made by the petitioner before the competent official of the respondent financial institution, then the respondent financial institution will consider the said plea and will take a considered decision thereon. Further it is pointed out that, in case the petitioner makes any request for making available the authenticated statement of account in the present loan transaction regarding the overdues to be cleared for regularizing the loan account, then such statement should also be furnished to her without any further delay. Therefore it is for the petitioner herein to approach the financial institution and the petitioner may also undertake that she would clear the entire overdues within 5 months, and latest by 31.5.2020, and to be paid in monthly instalments, and to be paid in monthly instalments, and the she W.P.(C) No. 32551 of 2019 ..14.. should give up all other contentions. If such a plea is made by the petitioner, then it is for the respondent financial institution to consider the same and take appropriate decision. However it is made clear that this Court cannot permit the petitioner to venger for get another writ proceedings. 12. It is made clear that it is entirely within the discretion of the respondent financial insitution to consider the plea of the petitioner, and in case the respondent takes any decision in favour of the petitioner, then the petitioner shall be legally obliged to meticulously and fully comply with all the terms and conditions laid down by the respondent financial institution therein. With these observations and directions, the above Writ Petition (civil) will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C) No. 32551 of 2019 ..15.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE AWARD PASSED IN LOK ADALAT CASE NO.PL NO.16592/2015 DATED 22.09.2015.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 05.11.2018 IN WPC NO.35394/2018 OF THIS HON'BLE COURT.** **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 20.11.2019 ISSUED BY THE ADVOCATE COMMISSIONER.** **EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS IN EP NO.112/2018 ON THE FILES OF PRINCIPAL SUB COURT, TRIVANDRUM.** **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS IN EA NO.119/2019 IN EP NO.112/2018 ON THE FILES OF PRINCIPAL SUB COURT, TRIVANDRUM DATED 13.11.2019.**